Exhibit 2.3(b)
FIRST AMENDMENT TO
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AGREEMENT FOR PURCHASE AND SALE
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This Agreement dated this 7/th/ day of January, 1998 between Amerada Xxxx
Corporation, a Delaware corporation (hereinafter referred to as "Seller") and
Xxxxxx Oil Corporation, a Michigan corporation (hereinafter referred to as
"Buyer").
WITNESSETH:
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WHEREAS, Seller and Buyer executed an Agreement for Purchase and Sale
("Agreement"), dated November 25, 1997, concerning oil and gas properties in
eleven (11) areas of mutual interest in the Mississippi Salt Basin; and
WHEREAS, Section 1.5 of the Agreement provides that the Closing shall take
place on February 23, 1998, or such earlier date as may be agreed upon by Buyer
and Seller ("Closing Date"); and
WHEREAS, Buyer has entered into an Exchange and Combination Agreement with
Xxxxxx Exploration Company ("MEC") pursuant to the terms of which the stock of
Buyer will be acquired by MEC concurrently with the closing of the initial
public offering of the common stock of MEC under the Securities Act of 1933; and
WHEREAS, Buyer anticipates that the closing of the initial public offering
of the common stock of MEC will occur between January 22, 1998 and February 23,
1998; and
WHEREAS, Buyer desires the option to accelerate the Closing Date so that it
will occur simultaneously with the closing of the initial public offering of
the common stock of MEC.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, Seller and Buyer agree to amend the Agreement as follows and
only as follows;
1. Buyer has given written notice (dated January 6, 1998) to Seller of
asserted title defects pursuant to Section 4.3(a), and except as
provided in paragraph 4 hereof, Buyer shall not assert further title
defects. As to all asserted title defects of which Buyer has given such
written notice to Seller, Seller reserves the right to contend, without
limitation, that (a) any such asserted title defect is not a title
defect as defined in Section 4.4; and/or (b) the asserted title defects
as to any Oil and Gas Property do not exceed the one percent (1%)
threshold provided in Section 4.3(a).
2. Buyer waives the right to assert any Environmental Defects under Section
4.8.
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3. The following is inserted at the end of the first sentence of Section 1.5:
";provided that if the conditions of Closing set forth in Section 6.1
have been satisfied or waived, Buyer may at its option, and on not less
than forty-eight (48) hours written notice, accelerate the Closing Date
to the date and time of the closing of the initial public offering of
common stock of MEC, but not earlier than January 22, 1998."
4. The following is inserted at the end of Section 1.5:
"If Buyer exercises the option to accelerate the Closing Date set forth
in the first sentence of this Section 1.5, the following provisions
shall apply, notwithstanding any provision to the contrary contained in
this Agreement:
a. With respect to any asserted title defects which in Seller's
reasonable judgment it has been unable to cure prior to the Closing
Date because of Buyer's acceleration of the Closing Date:
(1) Seller shall give written notice to Buyer of such asserted
title defects which it has been unable to cure;
(2) Buyer shall be deemed to have elected Section 4.3(b)(ii) with
respect to Mineral Interests affected by such asserted title
defect;
(3) The Purchase Price shall not be adjusted for purposes of
calculating the Closing Amount as a result of any uncured
asserted title defects;
(4) If and to the extent any such uncured asserted title defect is
not cured prior to March 31, 1998, any Purchase Price
Adjustment with respect thereto shall be determined in
accordance with Section 1.3 and paid as a partial refund by
Seller to Buyer, together with interest thereon at the rate
provided in Section 1.3 from the Closing Date to the date of
payment."
5. With respect to the Xxxxx No. 2 well and the leases and agreements
affecting the lands included in the ultimate unit established for such
well ("Xxxxx No. 2"):
a. Seller and Buyer shall jointly and diligently pursue efforts to
resolve all unitization, lease and other issues relating to the
Xxxxx No. 2;
b. Buyer's deadline to give notice of asserted title defects with
respect to the Xxxxx No. 2 under Section 4.3(a) shall be extended to
March 31, 1998;
c. Seller shall have thirty (30) days following receipt of
notice under paragraph 5(b) hereof to cure all or any
portion of asserted title defects with respect to the Xxxxx
No. 2;
d. Any Purchase Price Adjustment with respect to any uncured
asserted title defects with respect to the Xxxxx No. 2 shall
be determined in accordance with Section 1.3 and paid as a
partial refund by Seller to Buyer, together with interest
thereon at the rate provided in Section 1.3 from the Closing
Date to the date of payment.
6. In lieu of curing any title defect asserted by Buyer, including with
respect to the Xxxxx No. 2, or in lieu of the representations and
warranties in Sections 2.1.4, 2.1.6, or 2.1.9 being true with respect to
any of the Assets, including the Xxxxx No. 2, Seller may agree to
indemnify and save and hold harmless Buyer from all claims, costs,
expenses, liabilities and obligations arising from or attributable to such
title defect or such untrue representation or warranty.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof.
"BUYER"
XXXXXX OIL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President
"SELLER"
AMERADA XXXX CORPORATION
By: /s/ X. X. Xxxxxxxxx
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X. X. Xxxxxxxxx
Vice President
